Professional Documents
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Preliminary Injunction
Section 1.Preliminary injunction defined; classes. A preliminary
injunction is an order granted at any stage of an action or proceeding
prior to the judgment or final order, requiring a party or a court,
agency or a person to refrain from a particular act or acts. It may also
require the performance of a particular act or acts, in which case it
shall be known as a preliminary mandatory injunction. (1a)
PRELIMINARY INJUNCTION: an order granted at any stage of an action, prior to
the judgment or final order, requiring a party, court or agency or person to
perform or refrain from performing a particular act or acts.
a) Temporary
b) Subject to the final disposition of the principal action.
c) Dependent upon the result of the main action
PURPOSE: To preserve the status quo of the matter subject of the action and
to protect the rights of the plaintiff during the pendency of the suit.
Violation = ineffectual judgement
Raymundo vs CA:
It is provisional because it constitutes a temporary measure availed of during
the pendency of the main action and it is ancillary because it is a mere incident
in and is dependent upon the result of the main action.
An injunctive writ is not a judgment on the merits of the case. A writ of
preliminary injunction is generally based solely on initial and incomplete
evidence. the evidence submitted during the hearing on an application for a
writ of preliminary injunction is not conclusive or complete, for only a
sampling is needed to give the trial court an idea of the justification for the
preliminary injunction pending the decision of the case on the merits.
The findings of fact and opinion of a court when issuing the writ of preliminary
injunction are interlocutory in nature and made before the trial on the merits
is commenced or terminated. There may be vital facts to be presented at trial
which may not be obtained or presented during the hearing on the application
for the injunctive writ.
The exercise of judicial discretion by a court in injunctive matters must not be
interfered with except when there is grave abuse discretion. Grave abuse of
discretion in the issuance of writs of preliminary injunction implies a
capricious and whimsical exercise of judgment that is equivalent to
lack of jurisdiction, or where the power is exercise in an arbitrary or despotic
manner by reason of passion, prejudice or personal aversion amounting to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined, or
to act at all in contemplation of law.
Objective: To preserve the status quo until the merits of the case can be
heard fully.
It is resorted to by a litigant to protect or preserve his rights or interests and for
no other purpose during the pendency of the principal action.
Status quo - as the last actual, peaceful, and uncontested statues that
precedes the actual controversy, that which is existing at the time of the filing
of the case.
A preliminary injunction is directed against a:
a) party
b) court
c) agency, or
d) person
Kinds:
A) prohibitory injunction - which commands one to refrain from doing a
particular act.
B) mandatory injunction - which commands the performance of some
positive act to correct a wrong in the past.
Distinguish:
PROHIBITORY
MANDATORY
( Example: under sec 15 of rule 70, the rightful possessor of real property
deprived of his possession by force, intimidation, stealth, threats, or strategy,
may within 5 days from the filing of a complaint for forcible entry, present a
motion for the issuance of a writ of preliminary mandatory injunction to restore
him in his possession )
Main action for injunction vs prelim injunction:
MAIN ACTION
independent action
PRELIMINARY INJUNCTION
the trial court. On appeal therefrom, the appellate court in its discretion may make an order suspending, modifying,
restoring or granting the injunction, receivership, accounting, or award of support.
The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or
protection of the rights of the adverse party. (4a)
(a) That the applicant is entitled to the relief demanded, and the
whole or part of such relief consists in restraining the commission or
continuance of the act or acts complained of, or in requiring the
performance of an act or acts either for a limited period or
perpetually;
(b) That the commission, continuance or non-performance of the act
or acts complained of during the litigation would probably work
injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or
is attempting to do, or is procuring or suffering to be done some act
or acts probably in violation of the rights of the applicant respecting
the subject of the action or proceeding, and tending to render the
judgment ineffectual. (3a)
Section 4. Verified application and bond for preliminary injunction or
temporary restraining order. A preliminary injunction or temporary
restraining order may be granted only when:
(a) The application in the action or proceeding is verified, and shows
facts entitling the applicant to the relief demanded; and
(b) Unless exempted by the court the applicant files with the court
where the action or proceeding is pending, a bond executed to the
party or person enjoined, in an amount to be fixed by the court, to the
effect that the applicant will pay to such party or person all damages
which he may sustain by reason of the injunction or temporary
restraining order if the court should finally decide that the applicant
was not entitled thereto. Upon approval of the requisite bond, a writ
of preliminary injunction shall be issued. (4a)
(c) When an application for a writ of preliminary injunction or a
temporary restraining order is included in a complaint or any
initiatory pleading, the case, if filed in a multiple-sala court, shall be
raffled only after notice to and in the presence of the adverse party or
the person to be enjoined. In any event, such notice shall be
preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint or initiatory pleading
and the applicant's affidavit and bond, upon the adverse party in the
Philippines.
However, where the summons could not be served personally or by
substituted service despite diligent efforts, or the adverse party is a
resident of the Philippines temporarily absent therefrom or is a
nonresident thereof, the requirement of prior or contemporaneous
service of summons shall not apply.
(d) The application for a temporary restraining order shall thereafter
be acted upon only after all parties are heard in a summary hearing
the holding of a hearing, where both parties can introduce evidence and
present their side, is also required before the courts ay issue an injunctive
writ.
mere prima facie evidence is needed to establish the applicants right or
interest in the subject matter of the main action because the applicant is
required to show only that he has an ostensible right to the final relief prayed
for in his complaint. sampling to give the trial court an idea of the
justification for the preliminary injunction pending the decision of the case on
the merits.
ROC allows the issuance of the writ of preliminary injunction based on a
verified application, for as long as there is notice and hearing.
[ the facts disclosed that a summary hearing was actually conducted.
accordingly, although the general rule is that a sampling of evidence is
required to be submitted during the hearing on the motion for preliminary
injunction, there are also instances when the writ of preliminary injunction can
be issued based on the verified application, provided there is notice and
hearing. a judge is given a wide latitude or discretion in issuing the writ of
preliminary injunction after the hearing, especially when a clear and
unmistakable right to the issuance of the injunctive writ can be gleaned from
affidavits or the verified application and its supporting documents, considering
the peculiar circumstances of this case as when there are no factual issues
involved and the issued raised are purely legal in nature. ]
Requisites for issuance of a writ of preliminary injunction or a temporary
restraining order:
a) there must be a verified application. Absence of a verification makes an
application or petition or preliminary injunction patently insufficient both in
form and substance.
b) the applicant must establish i) the existence of a clear and unmistakable
right that must be protected; ii) an urgent and paramount necessity for the
writ to prevent serious damage.
c) the applicant must post a bond, unless exempted by the court. this bond,
which shall be in an amount to be fixed by the court, is executed in favor of the
party enjoined all damages which he may sustain by reason of the preliminary
injunction or the restraining order if the court should finally decide that the
applicant was not entitled to the writ or order.
d) as to writ of preliminary injunction, the court must conduct a hearing. a writ
of preliminary injunction cannot be issued without a prior notice and hearing.
under the rules, no preliminary injunction shall be granted without hearing
and prior notice to the party or persons sought to be enjoined
the application for a temporary restraining order shall thereafter be acted upon
only after all parties are heard in a summary hearing which shall be
conducted within 24 hrs after the sheriffs return of service and/or the records
are received by the branch selected by raffle and to which the records shall b e
transmitted immediately.
Note:
Preliminary Injunction needs notice and hearing. (Absolute)
TRO (Can be issued ex parte)
Section 5. Preliminary injunction not granted without notice; exception. No preliminary injunction shall be granted
without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by
affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter
can be heard on notice, the court to which the application for preliminary injunction was made, may issue a temporary
restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be
enjoined, except as herein provided. Within the said twenty-day period, the court must order said party or person to
show cause, at a specified time and place, why the injunction should not be granted, determine within the same period
whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. (Bar Matter
No. 803, 17 February 1998)
However, and subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant
will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a
single sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from
issuance but he shall immediately comply with the provisions of the next preceding section as to service of summons
and the documents to be served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before
whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order
shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of
effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours
provided herein.
In the event that the application for preliminary injunction is denied or not resolved within the said period, the
temporary restraining order is deemed, automatically vacated. The effectivity of a temporary restraining order is not
extendible without need of any judicial declaration to that effect and no court shall have authority to extend or renew
the same on the same ground for which it was issued.
However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective for
sixty (60) days from service on the party or person sought to be enjoined. A restraining, order issued by the Supreme
Court or a member thereof shall be effective until further orders. (5a)
Bond: court may order for the posting of a bond to protect the defendant
against loss or damage by reason of the injunction in case the court finally
decides that the plaintiff was not entitled to it, and the bond is usually
conditioned accordingly. (can be exempted)
a) Bond of applicant is insufficient in amount, and a bond sufficient in amount
with sufficient sureties is not filed, injunction shall be dissolved.
b) Bond of the adverse party is found to be insufficient in amount, and a bond
sufficient in amount is not filed forthwith, the injunction shall be granted or
restored, as the case may be.
*private person should be prejudiced by the preliminary injunction.
Rule on prior or contemporary service of summons; when not
required:
A prelim injunction may be granted at any age of the proceedings but prior to
the judgment or final order.
Hence, an applicant for a writ of preliminary injunction or a temporary
restraining order may be included in a complaint or any initiatory pleading.
if the case is filed in a multi-sale court, the case shall be raffled but only
after notice to and in the presence of the party sought to be enjoined. it is,
however required that the notice be preceded or contemporaneously
accompanied by service of summons upon the adverse party. together with the
summons shall be copy of the complaint and the applicants affidavit and bond.
However, where the summons could not be served upon the defendant either
in person or by substituted service despite diligent efforts or when the
defendant is temporarily out of the philippines or when he is a non-resident,
the requirement of prior or contemporaneous service shall not apply.
Section 5. Preliminary injunction not granted without notice;
exception. No preliminary injunction shall be granted without
hearing and prior notice to the party or person sought to be enjoined.
If it shall appear from facts shown by affidavits or by the verified
application that great or irreparable injury would result to the
applicant before the matter can be heard on notice, the court to which
the application for preliminary injunction was made, may issue a
temporary restraining order to be effective only for a period of twenty
(20) days from service on the party or person sought to be enjoined,
except as herein provided. Within the said twenty-day period, the
court must order said party or person to show cause, at a specified
time and place, why the injunction should not be granted, determine
within the same period whether or not the preliminary injunction shall
be granted, and accordingly issue the corresponding order. (Bar
Matter No. 803, 17 February 1998)
However, and subject to the provisions of the preceding sections, if
the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury, the executive judge of a multiple-sala
court or the presiding judge of a single sala court may issue ex parte a
temporary restraining order effective for only seventy-two (72) hours
from issuance but he shall immediately comply with the provisions of
the next preceding section as to service of summons and the
documents to be served therewith. Thereafter, within the aforesaid
seventy-two (72) hours, the judge before whom the case is pending
shall conduct a summary hearing to determine whether the temporary
restraining order shall be extended until the application for
preliminary injunction can be heard. In no case shall the total period
of effectivity of the temporary restraining order exceed twenty (20)
days, including the original seventy-two hours provided herein.
In the event that the application for preliminary injunction is denied
or not resolved within the said period, the temporary restraining
order is deemed, automatically vacated. The effectivity of a temporary
restraining order is not extendible without need of any judicial
declaration to that effect and no court shall have authority to extend
or renew the same on the same ground for which it was issued.
within this period, the judge, before whom the case is pending, shall conduct a
summary hearing to determine whether or not the TRO can be extended to
20 days. the 72 hour period shall be included in the maximum 20-day period
set by the rules. when the court is a multi-sale court, the TRO is not to be
issued by any other judge other than the executive judge of said court.
Note: if before expiration of TRO, prelim injunction is denied, TRO would be
deemed automatically vacated.
if no action is taken by the judge within 20-day period, the TRO would
automatically expire on the 20th day by the sheer force of law, no need for
judicial declaration.
omission to fix the period, deemed 20 day.
status quo order - is not a TRO. it is more in the nature of a cease and desist
order, has no specified duration and does not specifically direct the
performance of an act. it last until it is revoked. it duration may even be subject
to agreement of the parties. no bond is required for its issuance.
**parang decision ng court pag gustong i-maintained ung situation/status ng
contending parties.
Duration of TRO issued by:
RTC:
for 20 days, TRO takes effect from service on the party
for 72 hours, takes effect upon issuance and not from its service or notice
Gr: 20 days
Xp: if the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury, the executive judge of a multiple-sala court or
the presiding judge of a single sala court may issue ex parte a temporary
restraining order effective for..72 hours)
CA:
60 days from service. no discretion to extend the same
SC:
effective until further orders
Section 6. Grounds for objection to, or for motion of dissolution of,
injunction or restraining order. The application for injunction or
restraining order may be denied, upon a showing of its insufficiency.
The injunction or restraining order may also be denied, or, if granted,
may be dissolved, on other grounds upon affidavits of the party or
person enjoined, which may be opposed by the applicant also by
affidavits. It may further be denied, or if granted, may be dissolved, if
Republic Act No. 8975[1] expressly prohibits any court, except the Supreme
Court, from issuing any temporary restraining order (TRO), preliminary
injunction, or preliminary mandatory injunction to restrain, prohibit or compel
the Government, or any of its subdivisions or officials, or any person or entity,
whether public or private, acting under the Governments direction, from: (a)
acquiring, clearing, and developing the right-of-way, site or location of any
injunction." Under this quoted provision of the rules of court, the court is called
upon to exercise its discretion in determining or weighing the relative damages
that may be suffered by the parties. If the damages that may be suffered by
the defendant by the continuance of the injunction outweigh the damages that
may be suffered by the plaintiff by the dissolution of the injunction, then the
injunction should be dissolved. In the case at bar the respondent court, in
refusing to dissolve the writ of preliminary injunction, took into consideration
that "the petitioner (Belo) will suffer great and irreparable injury considering
the tremendous investment of the petitioner, his time and gigantic efforts
made to put up telephone service in Roxas City." An injunction issued to stop an
unauthorized act should not be dissolved by the mere filing of a counterbond,
otherwise, the counterbond would come the vehicle of the commission or
continuance of an unauthorized or illegal act which the injunction precisely is
intended to prevent.
Modification of the injunction:
if it appears that the extent of the preliminary injunction or restraining oder
granted is too great, it may be modified.
Grave abuse of discretion as a ground for nullifying an injunctive writ:
For grave abuse of discretion to exist as a valid ground for the nullification of
an injunctive writ, there must be a capricious and whimsical exercise of
judgment, equivalent to lack or excess of jurisdiction. The power must be
exercised in an arbitrary manner by reason of passion or personal hostility, and
it must be patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law.
The trial court, the Court of Appeals, the Sandiganbyan or the Court of Tax
Appeals that issued a writ of preliminary injunction against a lower court,
board, officer, or quasi-judicial agency shall decide the main case or petition
within six (6) months from the issuance of the writ.